Kaycliff Pty Ltd v Australian Broadcasting Tribunal

[1989] FCA 685

Re: KAYCLIFF PTY LIMITED; PETER ERIC BURDEN; ROBERT BERNARD CAMPBELL;
PETER GREGORY DAY and CHRISTOPHER CHARLES SKASE
And: AUSTRALIAN BROADCASTING TRIBUNAL and COMMUNICATIONS LAW CENTRE LTD
No. G525 of 1989
FED No. 685
Judicial Review

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Lockhart(1), Pincus(1) and Gummow(1) JJ.

CATCHWORDS

Judicial Review - natural justice - bias - Tribunal - statement made by Chairman at start of hearing - statement expressed dissatisfaction with conduct of one party - whether expression of opinion about issue before end of hearing creates reasonable apprehension of bias - conversation by husband of Chairman concerning issue before Tribunal - whether revival of apprehension of bias.

Administrative Decisions (Judicial Review) Act 1977

Broadcasting Act 1942, ss.91, 92, 92F, 17C

Broadcasting (Ownership and Control) Act 1987, s.22

Australian Broadcasting Tribunal (Inquiries) Regulations

HEARING

SYDNEY

#DATE 10:11:1989

Counsel for the appellants: Mr W.H. Nicholas Q.C.,

Mr J.R. Sackar Q.C. and Mr J.T. Gleeson

Solicitors for the appellants: Freehill, Hollingdale and Page

Counsel for the first respondent: Mr M. Minehan

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: Mr L.T. Grey

Solicitor for the second respondent: Public Interest Advocacy Centre

ORDER

The appeal be dismissed;

The appellants pay the respondents' costs of and incidental to the appeal, to be taxed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of Morling J. in proceedings brought under the Administrative Decisions (Judicial Review) Act 1977. The appellants, who were substantially unsuccessful below, complain principally that his Honour was in error in declining to hold that the Chairman of the Australian Broadcasting Tribunal (which body is the first respondent) is disqualified from proceeding further with a certain inquiry. That complaint has two bases. Firstly, the appellants say that during the course of the inquiry the Chairman criticised the fifth appellant (Mr Skase) in terms which created a reasonable apprehension of bias. Secondly, the appellants say that views expressed by the Chairman's husband (Mr Joseph of the New South Wales Bar) about issues before the Tribunal might also have created such an apprehension.

1. It is unnecessary, for the purposes of disposing of the appeal, to set out fully the factual and legal setting of the inquiry which gave rise to the allegations rejected below. However, some account of the events leading up to the inquiry and the relevant statutory provisions must be given.

2. The first appellant ("Kaycliff") agreed on 1 April 1988 to buy all the shares in TVW Enterprises Limited ("TVW"). The purpose of the transaction was to enable Kaycliff to obtain control of two commercial television stations, TVW 7 Perth, and SAS 7 Adelaide. The transaction was to achieve that directly as to the former station, of which TVW is the licensee, and indirectly as to the latter; TVW was the beneficial owner of all the shares in South Australian Telecasters Limited, the licensee of SAS 7 Adelaide.

3. Kaycliff borrowed the deposit required by the agreement of 1 April 1988, over $11 million, from a company in the "Qintex Group". That expression, the full scope of which needs no present exposition, applies to a number of companies (including Qintex Television Limited) directly or indirectly controlled by Qintex Limited. Mr Skase is Chairman of Qintex Ltd and he and his family interests have a controlling interest in it.

4. Under the then relevant provision, sub-s.91(2) of the Broadcasting Act 1942, ("the Act") on completion of the transaction just mentioned, Kaycliff appears to have acquired a "prescribed interest" in each of the licences. That was so because it was in a position to exercise either direct or indirect control of the licences (para.(b) of sub-s.91(2)) and in a position to exercise control of more than 5% of votes at a general meeting of each licensee (para.(c)).

5. As required by sub-s.92F(3) of the Act, Kaycliff gave the first respondent ("the Tribunal"), notice of the then proposed transaction, on 31 March 1988. Section 92F also requires, by sub-s.7A, that each person "to whom this section applies in relation to a transaction" lodge with the Tribunal an application for approval of the transaction. The scope of that requirement appears from sub-s.92F(1), under which the relevant persons are defined as including, where the relevant transaction is in respect of shares in a company holding a licence or shares in a company having an interest in a company holding a licence, persons who, as a result of the transaction, become -
   

"... the holder of interests in the company holding the licence (including any interests previously held) amounting to a prescribed interest in the licence".

1. In consequence of these provisions, applications were made in relation to the acquisition being discussed by all the appellants - i.e. by Kaycliff and by Messrs Burden, Campbell, Day and Skase.

2. In the Kaycliff application there was included a statement as to the effect of the transaction which began:
   

"If Mr Christopher Charles Skase acquired a prescribed interest in commercial television licences TVW7 and SAS7 by virtue of the transaction (which is not admitted) ..."

On the face of it, the passage just quoted was unexceptionable, in that Mr Skase held only 5% of the capital of Kaycliff. However, the whole truth was that, as Mr Skase ultimately explained to the Tribunal, he controlled 100% of the votes in Kaycliff, the other shareholders having agreed to vote in accordance with his wishes.

1. In Mr Skase's application for approval pursuant to s.92F appeared the sentence:
   

"8. ...

This application is made without prejudice to the right of Mr. Skase to argue that he did not, by virtue of the transaction, acquire a prescribed interest in the licences referred to above".

There also appeared a statement, identical with that in the Kaycliff application and partially quoted above, not admitting that he had acquired a prescribed interest in the two licences.

1. It should be added that the form of the application made by Mr Skase provided for the furnishing of information which might have included a disclosure of his control of the whole of the votes in Kaycliff at a general meeting. Item 20 asked for "full details of the relationship of the applicant to the prescribed party", which party was, of course, Kaycliff. The answer given did not, we think, fully disclose the relationship, mentioning only that Mr Skase held five fully paid ordinary $1 shares comprising 5% of the issued share capital. The word "relationship", as applied to the connection between a natural person and a company, seems amply wide enough to include total control.

2. The applications for approval referred to above were lodged, late, in May and June 1988, extensions of time having been granted by the Tribunal. There followed some further communications between the parties which might well have elicited the information referred to above which was omitted on the applications for approval, namely that Mr Skase controlled Kaycliff. On 26 September 1988, solicitors for Kaycliff and Mr Skase ("the solicitors") wrote to the Tribunal referring to an article published in the "Financial Review" and saying that they and Qintex Limited were -
   

"most concerned that the use of Kaycliff Pty. Limited to purchase the Perth and Adelaide television stations continues to be misrepresented as a device to enable Qintex and Mr. Skase to avoid the television ownership limits".

The letter went on to say, in effect, that it was accepted by Qintex Limited and Mr Skase that the "Perth and Adelaide audiences would count towards the total market reached by their combined television licence interests".

1. The television ownership limits referred to were those imposed by sub-s.92(1) of the Broadcasting Act, inserted by sub-s.22(1) of the Broadcasting (Ownership and Control) Act 1987, providing inter alia:
   

"A person contravenes this section if, and as long as, the person has prescribed interest in:

(a) a licence whose service area population exceeds, or each of 2 or more commercial television licences the aggregate of whose service area populations exceeds, 60% of the declared population of Australia".

1. About the same time, the Tribunal gave public notice that it had commenced an inquiry under the Act into the applications for approval which we have mentioned. The necessity to hold the inquiry arose from sub-s.17C(1) of the Act, which obliged the Tribunal to hold an inquiry into the requested exercise of certain "substantive powers", an expression which, by virtue of sub-s.17A(2)(f) and s.92FAA, includes applications for approval of the kind mentioned above. For reasons which need not be explained, a further notice of inquiry to the same effect as that of September was published in December 1988.

2. On 7 December 1988, the Tribunal wrote to the solicitors asking for information and documents concerning the acquisition of the two licences, and after some pleas for further time information was supplied on 17 January 1989. There was, again, no mention of the true relationship between Mr Skase and Kaycliff. On 27 February 1989, representatives of the solicitors had a meeting with Tribunal members and staff and said that it was intended to restructure the Qintex Group's debt financing; there was to be a "jumbo refinancing of media and other Qintex interests" and it was said that as part of the refinancing "the Kaycliff structure could change". During that meeting, representatives of the Tribunal said there was concern in respect of the inquiry -
   

"... to determine who, within the meaning of the Broadcasting Act, is controlling Kaycliff ..."

1. On 15 March 1989 the Tribunal wrote again to the solicitors referring to certain events and inquiring whether it could be -
   

"... inferred from these events that Mr Skase has a measure of control over the appointment of directors of Kaycliff and thereby over the operation of the Kaycliff licensees?"

1. That letter does not appear to have received a reply.

2. On 29 March 1989, the solicitors wrote to the Tribunal on behalf of a company called Coucal Pty Ltd, which was to be a subsidiary of Qintex Television Limited and proposed to acquire all the issued capital of South Australian Telecasters Limited, giving it a prescribed interest in the SAS 7 licence. On the same day, a similar letter was written with respect to a proposed acquisition by a company called Australian Television Network Holdings Limited of the whole of the issued capital of Kaycliff. On 4 April 1989, the solicitors wrote to the Tribunal withdrawing the reservation to the answer to the question in Mr Skase's application for approval pursuant to s.92F, mentioned earlier, and "all other similar reservations in other relevant applications". The reservations referred to are quoted above and repeated here:
   

"This application is made without prejudice to the right of Mr. Skase to argue that he did not, by virtue of the transaction, acquire a prescribed interest in the licences referred to above".

1. Mr Skase insisted, at the hearing before the Tribunal, that he had from the start controlled Kaycliff. It is unclear why this was not formally stated until some ten months after Kaycliff's application for approval was lodged and only six days before the commencement, on 10 April 1989, of the Tribunal's public hearing of an inquiry one of the stated purposes of which was to find out if Mr Skase had a measure of control over Kaycliff. The letter of 4 April 1989 also told the Tribunal that Australian Television Network Holdings Pty Ltd had bought all the issued shares in Kaycliff and Coucal Pty Limited had bought all the issued shares in South Australian Telecasters Limited on 31 March 1989.

2. The first public hearing of the inquiry began, as we have said, on 10 April 1989. Before explaining what happened then, it is necessary to say something of the Tribunal's procedures in holding an inquiry. Under sub-s.17C(5) of the Act an inquiry of this kind must be held "in accordance with this Division and the regulations". Sub-section 19(1) reads as follows:
   

"Subject to this section, proceedings before the Tribunal at an inquiry shall be held in public".

Sub-section (2) makes provision for private proceedings where the Tribunal is satisfied that "by reason of the confidential nature of any evidence or matter for any other reason", it is desirable to give appropriate directions. Under sub-s.25(1) the Tribunal is not obliged to have regard to "legal forms and solemnities" and under sub-s.25(2) it is "not bound by legal rules of evidence and may inform itself on any matter in such manner as it thinks fit".

1. Counsel for the appellants emphasised the requirement in sub-s.19(1), set out above, that "proceedings before the Tribunal" shall be "held in public", but it has to be said that the regulations dealing with inquiries of the relevant kind contemplate that the Tribunal may gather information privately, as it did here. Under sub-reg.3(2)(b) of the Australian Broadcasting Tribunal (Inquiries) Regulations, the Tribunal is empowered to:
   

"give directions for the purpose of ensuring that the issues to be considered in an oral stage of proceedings (if any), and the information relevant to those issues, are put in a document or documents before that stage of the proceedings".

This contemplates that there may be an "oral" stage of the proceeding and implies that the proceedings may be partly written. Under sub-reg.6(1), the Tribunal, on receiving an application of the relevant kind -

"... shall commence an inquiry into the requested exercise of that power by creating an inquiry file and shall ... place on that file copies of the application and any other document lodged with the application".

1. Regulation 6 goes on to make further provision for placing relevant material on the inquiry file (sub-reg.4), or at another specified place where it is to be available to the public (sub-reg.6), and the Tribunal must make the inquiry file itself, or a copy of it, available for public inspection (sub-reg.8).

2. Submissions made in relation to such inquiries must be in writing (sub-reg.10(1)(a)); they are included among the material which must be placed on the inquiry file: sub-reg.6(4)(a).

3. Under sub-reg.14(1):
   

"If the Tribunal considers it necessary or desirable to conduct any part of the proceedings in an inquiry orally, it may hold a hearing in relation to that part of the proceedings".

1. The regulation-making power in the Act (s.134) is, as is usual, a power to make regulations "not inconsistent with this Act". It was not contended that any of the regulations to which we have referred are inconsistent with sub-s.19(1) as providing for other than public proceedings before the Tribunal in the course of an inquiry. It is no doubt arguable that to conduct an inquiry by receiving and considering written material only, without any hearing, is not to hold proceedings "in public", even if the public may go and inspect the material on the file. On the other hand, we can see no basis for a contention that sub-s.19(1) is infringed merely by bespeaking and receiving information from parties in advance of an oral hearing. It was an important part of the argument advanced against the appellants that the statement made by the Chairman at the inception of the oral hearing, referred to below, could not be regarded as having been made at the beginning of the inquiry itself, and that the latter began months before. As will appear, we accept that the stage of the inquiry at which the Chairman's statement was made has importance. We proceed on the assumption, which we think justified by the course of argument, that the Tribunal's having received and considered information in the course of its inquiry before the oral hearing was valid and lawful. We are not, however, to be taken as having formed or expressed any view as to whether the regulations are wholly consistent with sub-s.19(1), quoted above.

2. The opening statement to which exception has been taken was made by the Chairman before appearances were called for; we do not quote it in full.

3. The statement made reference to recent legislative changes in the ownership and control provisions of the Act and to the applications for approval in question. The Chairman went on to say that, before Kaycliff applied for approval, the Tribunal was already concerned that "Mr Skase and the Qintex Group" might have acquired a prescribed interest in the two licences. The reason for the concern was said by the Chairman to be that, if such prescribed interest had been acquired, then "they would have a population reach of ... 66.95%". The Chairman then mentioned that, although Mr Skase was shown in the Kaycliff application as owning only 5% of the shares, there were questions as to how a $100 shelf company could obtain such a large loan to cover the deposit:
   

"It asked the question as to why had no documentation been provided to explain the funding arrangements re the terms of the sale agreement and what was the exact role of Qintex directors and senior executives who were respectively the shareholders and directors of Kaycliff. Lastly, was Kaycliff simply a legal device to obfuscate the ownership of these stations. This uncertainty was heightened by the very clear statements in Mr Skase's own application that he reserved his right to argue that he did not hold a prescribed interest in TVW and SAS."

1. Then, after referring to certain matters of no present importance, the Chairman referred to investigations the Tribunal had engaged in and to the fact that at the same time the Tribunal was inquiring into "the acquisition of former Fairfax television stations by Qintex". She added:
   

"I have mentioned these points to raise the great difficulty faced by the tribunal in implementing the government's policy which limits a person to only 60 per cent of the population."

1. We would interpolate that the sentence just quoted illustrates the point that the Chairman's statement had, as an important theme, a suggestion that the legislative structure was unsuitable in some respects, as being open to abuse.

2. The statement referred to the definition of "prescribed interest" mentioned above and to the fact that a failure to admit holding a prescribed interest made it necessary to hold an inquiry under the Act and regulations "at an unsatisfactory pace".

3. The Chairman then said that because of the "period of grace" of six months allowed to dispose of excess interests and the "recent explosion in the turnover" of licences and certain statutory requirements, a "person who is determined is certainly able to frustrate the tribunal from implementing government policy indefinitely". She added that, despite having a very high priority accorded to it, the process of investigating "who effectively controls this $100 shelf company ... has not allowed this oral hearing to be held before today". Then the statement explained that Kaycliff had been sold on 31 March 1989 (as mentioned above), that this had put companies in the Qintex Group and Mr Skase in contravention of the 60% limit, and that Mr Skase's solicitors had, on 4 April 1989, accepted that at all material times he had been in a position to control the two licensee companies. The Chairman then said:
   

"If this correspondence or admission had been received twelve months ago great public expense would have been avoided. Instead we are confronted with a situation where even if this inquiry were to be terminated today Mr Skase would have a minimum of a further six months to comply with the Act .... By this process Mr Skase will have extended his period of grace without even applying to the tribunal for an extension of this time."

1. It is not quite clear what was intended to be achieved by the opening statement, but one of the Chairman's principal purposes was, we think, to use the matter before the Tribunal as an illustration of what were thought to be unsatisfactory features of the system of control provided by the legislation. Insofar as the statement complained of the position adhered to by Mr Skase until shortly before the hearing, namely that his holding a prescribed interest in the two licensee companies was in question, it is difficult to see how that can be thought to show or suggest a bias against the Skase interests. If pleadings or affidavits in a court proceeding put an important point in issue but, at the trial, it is admitted that the issue raised was a false one from the outset and that there never was any question about the true facts, not all courts would receive the news with equanimity. Here, as it was entitled to do, the Tribunal took seriously the initial assertion that the relationship between Mr Skase and Kaycliff was simply that he owned 5% of the capital; the Tribunal made plain that it wished to investigate the control of Kaycliff. In fact, there was no need for any such investigation. Mr Skase gave evidence on the following day:
   

"I have been sitting here for the last two days explaining that at all times I have had control of Kaycliff. I have never denied that. I have put an application in to that effect."

In fact, he had not put in such an application. Insofar as the Chairman expressed or implied dissatisfaction with the course taken, in a procedural sense, we are of opinion that she acted lawfully, and not improperly, in doing so. One of the means whereby courts and tribunals discourage repetition of unsatisfactory modes of conducting proceedings (such as raising issues without any intention of pursuing them) is by remonstrating against them. In our opinion, it is not necessarily indicative of pre-judgment of the case that in this instance the protest was delivered promptly, rather than being embodied in the Tribunal's ultimate reasons for decision.

1. Another aspect of the opening statement was that, particularly by reference to the possibility of a "legal advice to obfuscate" ownership, the Chairman commented upon a point which might have turned out to be substantively in issue. The word "device" carries the flavour, in some contexts, of trickiness or impropriety. It seems fair to decide the appeal on the basis that the Chairman was, in a provisional way, implying a view adverse to the Skase interests and one which, if adhered to, might contribute to a rejection of the application for approval.

2. In answer to the appellants' contention that a reasonable apprehension of bias arose because of these references, it was contended in effect that the Tribunal is entitled to form provisional views, of various strengths, as it progresses through an inquiry and that to express such views in a moderate way is conventional and helpful.

3. The stage at which a preliminary view is announced appears to us to be relevant. For example, if at the end of the evidence but before addresses a judge expresses strong suspicion about a witness' veracity, one would hardly expect a claim of ostensible bias to be made. If, when an appeal is called on in court, the respondent, rather than the appellant, is asked to argue first, most observers would assume that the appellant was thought to have a strong case. Appellate courts ordinarily take such a course only when examination of the papers gives rise to a provisional view that the judgment appealed from is unsupportable. Again, we apprehend that such an invitation to the respondent, despite its well-known implication, would not be thought to reflect an improper bias, but merely to indicate that the court had already examined the judgment appealed from and, perhaps, written submissions.

4. It is said of Jessel M.R. that he never reserved judgment, except at the insistence of colleagues when sitting on the Court of Appeal; see Holdsworth, "A History of English Law", Vol XVI, 122-123. Judges who demonstrate an ability to decide complex cases at the very end of the hearing can do so only because they have worked the problems out and formed conclusions, subject always to the possibility of their being changed by further evidence or argument, as they go along. It can be useful for the parties to be given an insight into some or all of a court's or tribunal's developing opinions. Much depends on the personal style of the particular judge or member; we do not regard this Court as having the function of minutely scrutinising expressions used by members of administrative tribunals during the course of hearings before them to find, if possible, some impropriety.

5. Looking at the matter more generally, we decide this case on the basis that the weight of authority supports the conclusion that parties such as the appellants must raise quite a substantial case in order to succeed; only in unusual cases will an expression of opinion about an issue, given before the end of the hearing, be held to disqualify.

6. In The Queen v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Company Proprietary Limited (1953) 88 CLR 100 at 116 Dixon C.J., Williams, Webb and Fullagar JJ. said:
   

"But when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions - though it is unfortunate that a judge should have any - do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded' ..."

That passage was applied by Dawson J. in Vakauta v. Kelly (unreported, 5 October 1989) and his Honour denied that:

"... bias is inevitably displayed merely because a judge holds preconceptions or reveals that he does" (p 8).

Toohey J. also appears to have applied the same passage (p 21 of Vakauta).

1. In The Queen v. The Commonwealth Conciliation and Arbitration Commision; Ex parte The Angliss Group (1969) 122 CLR 546 at 553-554, Barwick C.J., McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ. said:
   

"But allowing for considerable scope for the formation and expression of opinion upon such matters of public interest and concern, it should not be forgotten that the confidence with which the Commission and its decisions ought to be regarded and received may be undermined, as much as may confidence in the courts of law, by a suspicion of bias reasonably - and not fancifully - entertained by responsible minds.

...

Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it."

1. In what might be thought to be the progenitor of a number of recent attacks on the propriety of the behaviour of judges, The Queen v. Watson; Ex parte Armstrong (1976) 136 CLR 248, Barwick C.J., Gibbs, Stephen and Mason JJ. cited with approval (at 262) the first of the two passages set out above. See also R. v. Lusink; Ex parte Shaw (1980) 32 ALR 47 at 50.

2. In Vakauta v. Kelly (above) the reasons of Brennan, Deane and Gaudron JJ. (1) support the view that the holding and expression of preconceived views (even at the very inception of the case), do not necessarily disqualify:
   

"In some cases and notwithstanding the professional detachment of an experienced judge, it will be all but impossible to put such preconceived views entirely to one side in weighing the evidence of a particular medical expert. This does not, however, mean that the judge is disqualified from hearing the particular action or any other action involving that medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. ... Nor will that requirement of the reality and appearance of impartial justice be infringed if a judge with preconceived views about the general reliability of the evidence of a particular medical witness discloses the existence of such views in the course of the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case."

1. The notion that the expression of preconceived ideas may not be enough to disqualify recurs in the judgments of Dawson J. (7) and Toohey J. (21); further, Dawson J. pointed out (9) that:
   

"... to recognize a preconception and alert the parties to it is likely to assist rather than hinder an impartial approach".

1. In that case, the trial Judge, when it was announced that three named doctors were to be called for the defendant in a personal injury case, expressed in forceful and colourful terms the view that they were prone to make light of a plaintiff's disability. He said, in effect, he thought they were biased witnesses.

2. The High Court was nevertheless of opinion that such remarks, standing alone, did not disqualify the judge. The appeal was, however, allowed because the initial comments were echoed by animadversions upon the credibility of one of the doctors (who gave oral evidence) in the reasons for judgment; the latter indicated that the judge had been "concerned to vindicate his preconceived and very strong adverse views about the reliability of" that witness and that he had "allowed those views to prejudice his whole approach to the case to the detriment of the defendant" (4 and 5). See also Grassby v. The Queen (unreported, High Court, 12 October 1989, 21, 22).

3. Although each case depends upon its own facts, it seems to us that the opening remarks of the Chairman complained of in this case were by no means as suggestive of a preconceived view, difficult to eradicate, as those which survived challenge in Vakauta v. Kelly. For our part, we respectfully concur in the view that expression by a court or tribunal of its current view of an issue may be advantageous, on occasions, rather than otherwise. The rules as to apparent bias must be balanced against the desirability of a thoroughly fair contest and the latter may positively favour a disclosure, without any equivocation, of an opinion held by the court or tribunal at a particular stage of the proceedings. In the absence of such disclosure, there may be a justified resentment on the losing side, based on their not having been made aware of the direction of the thinking of the court or tribunal on a particular issue and not having been given a fair opportunity to turn it into another path.

4. The Chairman was not expressing, in her opening statement, a view formed on the basis of no material. What she said was, no doubt, based on the papers already in the file, including the records of the Tribunal which made plain its interest in the control of Kaycliff. Although there was discussion before us of "pre-conceived" views, what was said was not properly so described; the Chairman was giving voice to thoughts prompted by material which the Tribunal had accumulated since the inquiry began.

5. It should be added that an additional difficulty in the appellants' path is that the relevant rules are not necessarily applied as strictly against non-judicial bodies which have policy functions: see The Queen v. The Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (above) at 553 and cf., in the United Kingdom, Franklin v. Minister of Town and Country Planning (1948) AC 87 per Lord Thankerton at 103-105; in the Privy Council (on appeal from British Columbia) White v. Kuzych (1951) AC 585 at pp 595-596; and in New Zealand, Re Royal Commission on Thomas Case (1982) 1 NZLR 252 at 277.

6. We are respectfully of opinion that the conclusion of the learned primary Judge was correct, namely that no reasonable apprehension of bias could have been aroused by the opening statement.

7. It should be added, although the point becomes academic, that the appellants conceded that any reasonable apprehension of bias engendered by the opening statement was dispelled by a discussion which took place between counsel and the chairman shortly after the opening statement was made. The significance of the opening statement lies in the argument mentioned later that the apprehension of bias said to have been engendered by the opening statement was revived by a subsequent conversation between the husband of the Chairman and a Mr Griffin. That conversation itself is the second ground of complaint to which we now turn.

8. Mr M. Joseph, a barrister who is the husband of the Chairman, spoke on 4 May 1989 to Mr Griffin, a member of the firm of solicitors acting for the appellants. The conversation occurred at a court in the country; reference was made to a Mr Kelly, another member of the same firm of solicitors, of whom Mr Joseph said, according to Mr Griffin:
   

"He might be just a bit too smart. In a recent situation in which I have been associated with he has given advice that I find extraordinary that a lawyer could give. I think for Christoper Skase to have said that he, at the time he purchased the Adelaide Station, did not believe that he had a prescribed interest, on legal advice, is very strange. I do not know how a lawyer can give such advice. OK, so Skase gets a deferment of twelve months, and is no doubt pretty happy about that, but I wonder about the lawyer giving the advice. Anyway, we shall see just how smart your Mr Kelly has been. Skase has been lucky that the press have been so fascinated with Mr Bond's problems."

Mr Joseph was asked by Mr Griffin about his involvement in the case before the Tribunal and whether he was appearing in it and said he was not.

1. There was a difference of recollection as to whether, as set out above, Mr Joseph said "associated" in the second sentence or used the word "interested". The primary Judge was unable to determine which word was used, but proceeded on the basis that Mr Joseph said that he was "interested in, and not associated with, the proceedings before the Tribunal".

2. The primary Judge accepted evidence that there had been no conversation between the chairman and Mr Joseph as to the evidence presented at the inquiry or the decision the Tribunal might make. His Honour also accepted that Mr Joseph's sources of information were media reports of the inquiry proceedings and evidence he had heard when he himself attended the inquiry. The only relevant information he obtained from his wife was that, as she told him on previous occasions, unrelated to the Kaycliff inquiry, Mr Kelly acted as solicitor for Mr Skase.

3. The primary Judge expressed the view that:
   

"... it would be wrong to conclude that a casual statement by a husband of his views on a matter under consideration by a tribunal of which his wife is a member gives rise to a reasonable apprehension that the husband's views might have been formed after discussion with his wife, or might be communicated to his wife."

We agree. Although we have found no authority directly bearing on the point, it appears to us that statements made outside and without the authority of a court or a tribunal by persons who are not its members cannot, in general, disqualify it from proceeding. Persons of considerable public credibility may on occasions make gratuitous statements as to a court's or a tribunal's established attitudes, perhaps even as a stratagem to create embarrassment. We think there are dangers in accepting the doctrine that statements of that kind can prejudice the right or affect the duty of a judge or tribunal member to sit.

1. Here, the relationship between Mr Joseph and the Chairman might have induced Mr Griffin to think that Mr Joseph's views of the matter were derived, at least in part, from discussions with his wife, but he did not say they were and in fact they were not; Mr Joseph was merely, if perhaps incautiously, expressing his own view.

2. It was said for the appellants that the apprehension of bias allegedly engendered by the opening statement was revived by the conversation between Messrs Joseph and Griffin.

3. We are of opinion that, on the primary Judge's findings, the Chairman cannot have been disqualified by what Mr Joseph said, but we should add that we think the argument that the Joseph conversation revived the statements made in the Chairman at the inception of the hearing is without substance. The principal basis of that contention was Vakauta v. Kelly (above), where it was held (e.g. at p 4) that statements made by a judge in his reserved reasons for decision revived statements to somewhat similar effect, made by him at an earlier stage. That case does not support the proposition that statements made by a judge or member of a tribunal can be "revived" by statements made, without the authority of that judge or member, by another. Whether such a mode of revival is permissible in law is open to serious question. As the point was not fully argued before us and it is not necessary to decide it in this case we prefer to leave it open. It is sufficient for present purposes to say that on the facts of this case, the point is untenable. Counsel for the appellants argued that what Mr Joseph said echoed the preliminary view expressed by the Chairman. Insofar as both statements (the second much more pointedly than the first) referred to Mr Skase's having initially failed to admit that he had a prescribed interest and the possible reasons for his having done so, the submission is correct, but the same thoughts about the matter would be likely to occur to anyone who understood what had happened; the partial coincidence of views is not remarkable.

1. This part of the appellants' case, therefore, also fails.

2. Other points were raised by counsel for the appellants which it is unnecessary to mention as they were disposed of in the course of argument.

3. The appeal must be dismissed with costs.